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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. GARY TIMOTHY MCCALLUM, Appellant. DIVISION ONE No. 71654-9-1 UNPUBLISHED OPINION

FILED: June 29, 2015 Dwyer, J. — Following a jury trial, at which he did not testify, Gary McCallum was convicted of assault in the second degree. On appeal, McCallum contends that the trial court was required, on its own initiative, to instruct the jury that McCallum was not required to testify and that the jury was not permitted to 

### draw a negative inference from his choice not to testify. Because the law imposes no such duty on the trialjudge, we affirm.
I 

### McCallum was charged by second amended information with one count of assault in the second degree and one count of malicious mischief. A jury trial commenced on October 25, 2010. McCallum did not testify. The State 

### submitted a packet of 17 proposedjury instructions and a verdictform. The defense did not propose any jury instructions or take exception to any of theNo. 71654-9-1/2
instructions that were proposed by the State. The court gave the 17 instructions that were proposed by the State. The jury returned a guilty verdict on the second degree assault charge and a not guilty verdict on the malicious mischief charge. McCallumwas sentenced to 5 months in custody with work release, if eligible.
II When a defendant does not testify at trial, he may request, and the court 

### must then give, an instruction to the jurydirecting the jury to not draw an adverse inference from the absence of his testimony. McCallum contends that, even 

### absent a request from him, the trial court was constitutionally required to give such an adverse inference instruction to the jury. His contention is contrary to both federal and state law. 

### This issue is long-settled under federal law. In Carterv. Kentucky, the 

### Supreme Court held that "a state trialjudge has theconstitutional obligation, upon properrequest, tominimize the dangerthat thejury will give evidentiary weight to a defendant's failure totestify" by giving an adverse inference instruction. 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L Ed. 2d 241 (1981) 

### (emphasis added). Throughout its opinion, theCourt explicitly limited thetrial court's obligation to situations in which an adverse inference instruction was 

### requested. For example, in explaining its purposefor accepting review ofthe case, the Court stated, "We granted certiorari to consider the petitioner's contention that a defendant, upon request, has a right to such an instruction." Carter, 450 U.S. at 289-90 (emphasis added). Furthermore, after discussingNo. 71654-9-1/3 relevant precedent, the Court concluded, "The principles enunciated in our cases . . . lead unmistakably to the conclusion that the FifthAmendment requires that a criminal trialjudge must give a 'no-adverse-inference' jury instruction when 

### requested by a defendantto do so." Carter, 450 U.S. at 300 (emphasis added). The Court also related the defendant's right not to testify to the trial court's 

### obligation to protectthat right upon proper request, stating, "A trialjudge has a 

### powerful tool at his disposal to protectthe constitutional privilege—thejury instruction—and he has an affirmative constitutional obligation to use that tool 

### when a defendant seeks itsemployment." Carter, 450 U.S. at 303 (emphasis 

### added). Finally, theCourt stated in summary that, "the failure tolimit thejurors' 

### speculation on themeaning of [a defendant's] silence, when the defendant makes a timely requestthat a prophylactic instruction be given, exacts an 

### impermissible toll on the full and free exercise ofthe privilege." Carter, 450 U.S. at 305 (emphasis added). 

### Three years later, the Supreme Court reiterated that, in orderto beentitled to an adverse inference instruction, a defendant must "adequately invoke[] his 

### substantive rightto [such] jury guidance." Jamesv. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984). In so holding, the Court 

### specifically cited to Carter, which it repeatedly cited for the proposition that atrial court is required togive an adverse inference instruction only ifthedefendant makes a timely request. James, 466 U.S. at 342, 344, 349("In Carter... we 

### held that a trialjudge must, ifrequested to do so, instructthejury not todraw an adverse inferencefrom the defendant's failure to take the stand In Carter we

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held that, in order fully to effectuate the right to remain silent, a trialjudge must instruct the jury not to draw an adverse inference from the defendant's failure to testify ifrequested to do so. . . . Carter holds that ifasked to do so the trial court 

### musttell thejury not to draw the impermissible inference." (emphasis added)).1 State law accords with federal law on this issue. See State v. Pavelich, 153 Wash. 379, 380, 279 P. 1102 (1929) ("In this case, ... no request was made 

### for any such instruction. Appellants merelyexcepted to the failure of the court of its own motion to give such an instruction. This was not sufficient to save such 

### error."); see also State v. Jeffries. 105Wn.2d 398, 423, 717 P.2d 722 (1986) 

### (extending the rule—that the defendant must request an adverse inference instruction—to the penaltyphase of an aggravated murderprosecution); State v. Goldstein. 65 Wn.2d 901, 903-04, 400 P.2d 368 (1965) ("[T]he court is not 

### required togive such an instruction unless requested
. . . ."); Statev. Zupan. 155 Wash. 80, 97, 283 P. 671 (1929) ("Appellant complains that the court did not 

### instruct thejury that noinference ofguilt should arise againstappellant because of hisfailure totestify. The courtwas notrequired to give such instruction unless requested.").

1McCallum purports to rely on Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978), in which the SupremeCourt held that "thegiving of[an adverse inference] instruction overthedefendant's objection does not violate theprivilege against compulsory self-incrimination." However, the Court also stated therein that "each State is, of course, free toforbid its trialjudgesfrom [giving a cautionary adverse inference instruction overa defendant's objection] as a matter ofstate law." Lakeside, 435 U.S. at340. Because the LakesideCourt made clear that a trial court may be prohibited by lawfrom giving the juryan adverse inference instruction absent a proper requestby the defendant, that case cannot be read to support McCallum's contention that thetrial court wasconstitutionally required, absent any requestfrom him, togive thejury an adverse inference instruction.No. 71654-9-1/5
A trial court is not required to give an adverse inference instruction absent
a timely request by the defendant. Here, there was no such request. Accordingly, there was no error. Affirmed. 

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We concur: 

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